Killing senior terrorists, expert bomb makers, and those who provide philo- sophical guidance for terrorists may spare countless noncombatant victims while, at the same time, forgoing risk to friendly combatant forces. A successful targeted killing removes a dangerous enemy from the battlefield and deprives the foe of his leadership, guidance, and experience. The targeted killing of terrorist leaders leaves subordinates confused and in disarray, however temporarily. Suc- cessors will feel trepidation, knowing they too may be in the enemy’s sights. Tar- geted killing unbalances terrorist organizations, making them concerned with protecting their own membership and diverting them from their goals.
But targeting mistakes are made, whether the intended victim is killed one on
one or by missiles.74 In 1973, in Lillehammer, Norway, Israeli Mossad agents
murdered a Moroccan waiter they mistook for a Palestinian involved in killing
Israeli athletes at the Munich Olympics the year before.75On the Pakistan-
Afghanistan border in February 2002, a U.S. Predator tracked and killed a tall in-
situations may change in the moments between the order to fire and impact— women and children enter the impact area, the target moves to cover. Stuff does
happen.77
Innocent bystanders are often killed in targeted killings. Crowded city streets, even isolated houses, inevitably yield “collateral damage.” Are the anticipated deaths proportional? What level of probable noncombatant lethality is accept- able? “An extremely strong case has to be made to justify an attack on suspected terrorists when it is likely, not to mention inevitable, that the attack will cause the death of civilians. After all[,] . . . the military advantages to be gained by tar-
geting them are based largely on speculation.”78Does a more significant targeted
individual justify a greater potential number of innocent deaths? Does the possi- ble death of Osama Bin Laden justify the probable deaths of five bystanders? Ten? Fifty? In January 2006, in the village of Damadola, Afghanistan, seventeen Afghans died in a futile U.S. missile strike on several houses. The attack was
aimed at al-Qa‘ida deputy Ayman Zawahiri.79American commanders appar-
ently thought the risk of multiple noncombatant deaths was outweighed by the possibility of killing Zawahiri.
Targeted killings may prove counterproductive, in that they can instigate greater violence in revenge or retaliation. “I hope it will reduce the violence and bring back reason to this area,” an Israeli major general said in 2000 after three
missiles killed a Palestinian leader and two middle-aged female bystanders.80In-
stead, the killings touched off a week of the most intense fighting seen in that round of the conflict.
In a world where the enemy has missiles too, a targeted killing by the United States “makes every American official both here and in the Middle East a target
of opportunity.”81If an expanded interpretation of who constitutes a legitimate
civilian candidate for targeted killing is accepted, we must accept that our own nonuniformed leaders and weapons specialists will become legitimate targets. “The United States and countries that follow its [targeted killing] example must be prepared to accept the exploitation of the new policy by adversaries who will not abide by the standards of proof or evidential certainty adhered to by Western
democracies.”82Some believe the bombing of Pan Am flight 103 over Lockerbie,
Scotland, on 21 December 1988, killing 270, was Muammar Qaddafi’s revenge for the 1986 U.S. bombing of his Libyan home that killed his fifteen-month-old
daughter.83“Many past and present military and intelligence officials have ex-
pressed alarm at the Pentagon policy about targeting Al Qaeda members. Their concerns have less to do with the legality of the program than with its wisdom,
its ethics, and, ultimately, its efficacy.”84
It is argued that civilian victims of targeted killing, not afforded an opportu- nity to surrender, are deprived of due process and denied the “inherent right to
life.”85The victim is unable to contest that he is a terrorist, seek judicial review, or
lodge an appeal; no legal assessment of the legality of the targeting is available.86
But these objections accompany the initial question of direct participation in hostilities; if an individual is directly involved in hostilities, he forfeits noncom- batant immunity and becomes a lawful target. Soldiers engaged in armed con- flict are not afforded due-process rights. Even away from the battlefield, “deprivation of life shall not be regarded as a violation of the right to life when it results from the use of force which is no more than absolutely necessary in . . .
defence of any person from unlawful violence.”87If considered a case of propor-
tional self-defense, targeted killing would not violate the right to life off the battlefield.
With the limitations discussed here, targeted killing is within the bounds of law of armed conflict. Terrorists should not be permitted the shield of Additional Protocol I, article 51.3. This conclusion requires a broader interpretation of arti- cle 51.3, granting civilians targeting immunity except when they are directly participating in hostilities, than is currently universally accepted. But expansive interpretations of treaty provisions are not novel. (Although the United States has not ratified Additional Protocol I, article 51.3 is widely considered an ex- pression of customary law.) Dean Anne-Marie Slaughter, of Princeton Univer- sity’s Woodrow Wilson School of Public and International Affairs and a former president of the American Society of International Law, argues that the United Nations should itself target individuals identified by the Security Council as murderous despots. (She adds, however, “Such a course would never be accept-
able, if undertaken by a single nation.”)88Still, LOAC is not contravened if a tar-
geted killing is carried out by a nation acting within the parameters described here. In U.S. law, and in the law of armed conflict, the targeting killing of civil- ians taking a direct part in hostilities, while they are taking a direct part, is not forbidden. The issue is in deciding what constitutes “a direct part.” As always, the devil is in the details.
N O T E S
1. There are definitions in scholarly articles— for example, “Premeditated killing of an indi- vidual by a government or its agents.” William C. Banks and Peter Raven-Hansen, “Targeted Killing and Assassination: The U.S. Legal Framework,” 37 University of Richmond Law Review (2002–2003), p. 671.
2. Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 [here- after Commentary] (Geneva: Martinus Nijhoff, 1987), p. 515. Grotius, in his land- mark 1625 work, writes, “According to the law of nations, anyone who is an enemy may
be attacked anywhere. As Euripides says: ‘The laws permit to harm a foe where’er he may be found’”; Hugo Grotius, The Law of War and Peace (Buffalo, N.Y.: Hein reprint of Kelsey translation, 1995), Book III, chaps. IV, VIII. 3. 1977 Additional Protocol I [hereafter AP I], art. 43.2. AP I is one of two treaties that up- date and supplement the familiar 1949 Geneva Conventions: “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains . . . ) are combatants [and] have the right to partic- ipate directly in hostilities.”
4. UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, U.K.: Oxford Univ. Press, 2004), ¶ 4.1: “Combatants have the right to attack and to resist the enemy by all the methods not forbidden by the law of armed conflict.” See also ¶ 5.4.5, listing lawful military objectives (“a. combatant members of the armed forces and those who take a di- rect part in hostilities without being members of the armed forces [who are not hors de combat]”).
5. President George W. Bush in Camp David in- terview, 18 April 2006, available at www.cnn .com/2006/POLITICS/04/18/rumsfeld/. On 1 May 2003, aboard the aircraft carrier USS Lincoln, President Bush wore a military flight suit while announcing the conclusion of armed operations in Iraq.
6. U.S. Army Dept., Judge Advocate Memoran- dum of Law (27-1a), Subject: Executive Or- der 12333 and Assassination, n.d., reprinted in The Army Lawyer (December 1989), p. 4. 7. Maj. Matthew J. Machon, “Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror” (25 May 2006, unpublished monograph, School of Advanced Military Studies, U.S. Army Command and General Staff College, Fort Leavenworth, Kansas, on file with author).
8. Convention (No. IV) Respecting the Laws and Customs of War on Land, with Annex of Regu- lations [hereafter HR IV], 18 October 1907, Annex 1, 36 Stat. 2277, TS 539 (26 January 1910), art. 23(b).
9. U.S. Army Dept., The Law of Land Warfare, Field Manual [hereafter FM] 27-10 (Wash- ington, D.C.: U.S. Government Printing Of- fice, 1956), para. 31.
10. Judge Advocate Memorandum of Law (27-1a), ¶ 3.a. Even were targeted killing considered assassination, EO 12333 presents no real im- pediment to targeting individuals in wartime. An EO is not law, and it may be revoked or excepted by the president as readily as it was applied.
11. Abraham D. Sofaer, “Terrorism, the Law, and the National Defense,” 126 Military Law Re- view (1989), p. 117.
12. Michael Walzer, Just and Unjust Wars, 3d ed. (New York: Basic Books, 2000), pp. 200–201. 13. Yoram Dinstein, The Conduct of Hostilities
under the Law of International Armed Conflict (Cambridge, U.K.: Cambridge Univ. Press, 2004), p. 199.
14. FM 27-10, para. 31.
15. 1949 Geneva Conventions, common art. 3(1). For hors de combat, Dinstein, Conduct of Hostilities, p. 28.
16. Seymour M. Hersh, “Manhunt,” New Yorker, 23 and 30 December 2002, p. 66.
17. “No Holds Barred,” Economist, 9 November 2002, p. 49.
18. Asa Kasher and Amos Yadlin, “Assassination and Preventive Killing,” 25-1 SAIS Review of International Affairs (Winter–Spring 2005), p. 45.
19. Yoram Dinstein, War, Aggression and Self- Defence, 4th ed. (Cambridge, U.K.: Cambridge Univ. Press, 2005), p. 180.
20. “Dr. Condoleezza Rice’s Opening Remarks to Commission on Terrorist Attacks,” 8 April 2004, available at www.whitehouse.gov/news/ releases/. Presidential Decision Directive 62, signed in 1998, ordered the secretary of de- fense to provide transportation to bring indi- vidual terrorists to the United States for trial. 21. Vincent Joël Proulx, “If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflec- tions on the Indefinite Detention and Tar- geted Killing of Suspected Terrorists,” 56 Hastings Law Journal (2004–2005), p. 873. 22. HR IV, art. 23(d).
23. Anthony Dworkin, “The Killing of Sheikh Yassin: Murder or Lawful Act of War?” Crimes of War Project, 30 March 2004, avail- able at www.crimesofwar.org/onnews/news -yassin.html.
24. Sandoz, Swinarski, and Zimmermann, eds., Commentary, p. 476.
25. Prosecutor v. Pavle Strugar & Others (ICTY Case IT-01-42-AR72), Appeals Chamber de- cision of 22 November 2002, paras. 9–10 on interlocutory appeal.
26. David Kretzmer, “Targeted Killing of Sus- pected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?” 16-2 Euro- pean Journal of International Law (2005), p. 179.
27. O. Ben-Naftali and K. R. Michaeli, “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Kill- ings,” 36 Cornell International Law Journal (2003), p. 239.
28. Keith B. Richburg and Lee Hockstader, “Is- raelis Kill Arab Militia Official,” Washington Post, 10 November 2000, p. A1.
29. Deborah Sontag, “Israelis Track Down and Kill a Fatah Commander,” New York Times, 10 November 2000, p. A1.
30. Clyde Haberman, “Israeli Raid Kills 8 at Hamas Office; 2 Are Young Boys,” New York Times, 1 August 2001, p. A1.
31. In 2005, I asked an IDF judge advocate who was involved in planning the Shehade opera- tion what he had been thinking to allow a one-ton bomb to be employed in such a manner. His response, inadequate but under- standable to any military planner, was, “We f——d up.”
32. Craig R. Whitney, “War on Terror Alters U.S. Qualms about Assassination,” International Herald Tribune, 29 March 2004, p. 2. 33. Dinstein, Conduct of Hostilities, p. 150. 34. Ori Nir, “Bush Seeks Israeli Advice on ‘Tar-
geted Killings,’” Forward, 7 February 2002, p. 1, available at www.forward.com/issues/2003/. 35. For dissenters, Prof. Robert F. Turner, “In
Self-Defense, U.S. Has Right to Kill Terrorist bin Laden,” USA Today, 26 October 1998, p. 17A. For the Western press, “Self-Licensed to Kill,” Economist, 4 August 2001, p. 12 (“Israel justifies these extra-judicial killings as self- defense. . . . But the usual context of such a discussion would be that the two sides involved were at war. . . . The barely remembered truth is that the Israeli government and the Palestin- ian Authority are supposed to be partners in a
peace process”) and, “Assassination Ill Befits Israel,” New York Times, 7 October 1997, p. A24 (“Trying to assassinate Palestinian lead- ers in revenge is not the answer”).
36. Reuters, “Nixon Solution: He Would Order Hussein Killed,” International Herald Tri- bune, 15 April 1991, p. 3.
37. Joel Greenberg, “Israel Reaffirms Its Policy of Assassinating Militants,” New York Times, 6 July 2001, p. A6.
38. Sofaer, “Terrorism, the Law, and the National Defense,” p. 121.
39. Bob Woodward and Vernon Loeb, “CIA’s Covert War on Bin Laden,” Washington Post, 14 September 2001, p. A1.
40. Paul Richter, “White House Justifies Option of Lethal Force,” Los Angeles Times, 29 Octo- ber 1998, p. A1.
41. On dissenters, Proulx, “If the Hat Fits,” p. 884: “I contend that targeted killing amounts to a violation of customary international law . . . effectively stripping the target of his right to claim POW status, which is in direct viola- tion of Articles 4 and 5 of Convention III.” 42. “No Holds Barred,” Economist.
43. N. G. Printer, Jr., “The Use of Force against Non-State Actors under International Law: An Analysis of the U.S. Predator Strike in Ye- men,” 8 UCLA Journal of International Law and Foreign Affairs (2003), pp. 359–60. 44. James Risen and David Johnston, “Bush Has
Widened Authority of C.I.A. to Kill Terror- ists,” New York Times, 15 December 2002, p. A1.
45. Josh Meyer, “CIA Expands Use of Drones in Terror War,” Los Angeles Times, 29 January 2006, p. A1.
46. Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 945 (DC Cir. 1988). 47. 116 Statute 1498: Public Law 107-243 of 16
October 2002, “Authorization for Use of Mil- itary Force against Iraq Resolution of 2002,” sec. 3.
48. Public Law 107-40, 115 Stat. 224 (18 Septem- ber 2001).
49. Tom Ruys, License to Kill? State-Sponsored Assassination under International Law, Working Paper 76 (Leuven, Belg.: Institute for International Law, May 2005), available
at www.law.kuleuven.ac.be/iir/eng/wp/ title.html.
50. HR IV, art. 25, and 1977 AP I, art. 3 (1)(a) and (d). Also, “It is a generally recognized rule of international law that civilians must not be made the object of attack directed ex- clusively against them.” UK Ministry of Defence, The Law of War on Land: Part III of the Manual of Military Law (London: Her Majesty’s Stationery Office, 1958), para. 13. All nations’ military manuals are in agreement.
51. AP I, art. 50.1. 52. Ibid., art. 51.3.
53. Dinstein, Conduct of Hostilities, pp. 27–28. 54. FM 27-10, paras. 80, 81; HCJ 769/02, Public
Committee against Torture, et al. v. Govern- ment of Israel, et al. (13 December 2006), para. 25.
55. The targeted individual would not fall under Geneva Convention III, art. 4.A(2), as a mem- ber of a “volunteer corps, including those of organized resistance movements,” because in the war against terrorism a nonstate enemy cannot be a party to the Geneva Conventions. 56. David Johnston and David E. Sanger, “Fatal
Strike in Yemen Was Based on Rules Set Out by Bush,” New York Times, 6 November 2002, p. A14.
57. Banks and Raven-Hansen, “Targeted Killing and Assassination,” p. 677, citing The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862). 58. Laura Blumenfeld, “In Israel, a Divisive
Struggle over Targeted Killing,” Washington Post, 25 August 2006, p. A1.
59. For a listing of commands (less, when visited, African Command) see United States Depart- ment of Defense, available at www.defenselink .mil/specials/unifiedcommand.
60. AP I, art. 51.5(b).
61. Blumenfeld, “In Israel, a Divisive Struggle.” 62. AP I, art. 51.3.
63. Kasher and Yadlin, “Assassination and Pre- ventive Killing,” p. 48. Professor Kasher is an academic adviser to the Israeli Defense Force College of National Defense. Major General Yadlin is the former commander of the same college.
64. “Targeting Assassination,” Washington Post, 25 April 2004, p. B4.
65. Esther Schrader and Henry Weinstein, “U.S. Enters a Legal Gray Zone,” Los Angeles Times, 5 November 2002, p. A1.
66. U.S. Defense Dept., “Contractor Personnel Authorized to Accompany the U.S. Armed Forces,” Instruction 3020.41, 3 October 2005, para. 6.3.5.
67. Antonio Cassese, “Expert Opinion on Whether Israel’s Targeted Killings of Pales- tinian Terrorists Is Consonant with Interna- tional Humanitarian Law” (unpublished manuscript on file with author, n.d.), p. 3. 68. Kenneth Watkin, “Humans in the Cross-
Hairs: Targeting and Assassination in Con- temporary Armed Conflict,” in New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, ed. David Wippman and Matthew Evangelista (Ardsley, N.Y.: Transna- tional, 2005), pp. 137, 147.
69. Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 193.
70. Watkin, “Humans in the Cross-Hairs,” p. 155. 71. George P. Fletcher, “The Indefinable Concept
of Terrorism,” 4 Journal of International Criminal Justice (November 2006), p. 898. ICRC writings also support the position that an individual may take an active part in hos- tilities without touching a weapon. See Sandoz, Swinarski, and Zimmermann, eds., Commentary, pp. 618–19.
72. Emerich de Vattel, The Law of Nations, or, Principles of the Law of Nature (Northampton, Mass.: Thomas M. Pomroy for S. & E. Butler, 1805), p. 327. Spelling rendered
contemporary. 73. AP I, art. 52(2).
74. John R. Crook, “Contemporary Practice of the United States Relating to International Law,” 100-2 American Journal of International Law (April 2006), p. 488, a brief account of a Predator missile intended for Ayman al- Zawahiri, al-Qa‘ida’s second in command, killing several noncombatant civilians (and an al-Qa‘ida planner) instead. For one-on- one killings, Elissa Gootman, “Israeli Military Says It Regrets Killing of a Palestinian Lec- turer,” New York Times, 30 April 2004, p. A6.
75. Serge Schmemann, “The Harsh Logic of As- sassination,” New York Times, 12 October 1997, p. A1.
76. Meyer, “CIA Expands Use of Drones.” 77. Secretary of Defense Donald Rumsfeld, Pen-
tagon press briefing, 12 April 2003, available at www.cnn.com/2003/.
78. Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 201.
79. Griff Witte and Kamran Khan, “U.S. Strike on Al Qaeda Top Deputy Said to Fail,” Wash- ington Post, 15 January 2006, p. A1. Other sources say eighteen noncombatants were killed; see, for example, Daniel Byman, “Tar- geted Killing, American-Style,” Los Angeles Times (online), 20 January 2006, p. A1. 80. John Kifner, “Assassination of Palestinian
Fuels Fighting in Middle East,” New York Times, 12 November 2000, p. A4.
81. Thomas Powers, “When Frontier Justice Be- comes Foreign Policy,” New York Times, 13 July 2003, p. WK1.
82. Kristen Eichensehr, “On the Offensive: Assas- sination Policy under International Law,” 25-3 Harvard International Review (Fall 2003), available at harvardir.org/articles/1149. 83. See Michael Ashkouri, “Has United States
Foreign Policy towards Libya, Iraq and Serbia Violated Executive Order 12333: Prohibition on Assassination?” 7 New England Interna- tional and Comparative Law Annual (2001), p. 168. On 15 April 1986, in response to an alleged Libyan bombing of a German
discotheque frequented by U.S. military per- sonnel, the United States conducted an air at-
tack on Libya (Operation ELDORADO
CANYON), striking five military targets, in- cluding Qaddafi’s headquarters at the Al-Azzizya Barracks. An estimated 100–150 Libyans were killed, in addition to two U.S. fliers. The UN General Assembly subse- quently condemned the U.S. action. 84. Hersh, “Manhunt.”
85. “International Covenant on Civil and Politi- cal Rights,” art. 6(1). The right to life is the only right referred to in the covenant as in- herent, lending it particular significance. Also see “Universal Declaration of Human Rights,” art. 3; the “European Convention for the Pro- tection of Human Rights”; the “African Char- ter on Human and Peoples’ Rights,” art. 4; and the “American Convention on Human Rights,” art. 4(1).
86. See McCann & Others v. the United Kingdom, No. 18984/91, 31 Eur. Ct. H. R. (1995), paras. 205–14, in which the European court speci- fies three requirements for employing lethal force against terrorists: there must be a strict and compelling necessity test; the threat and the targeting state’s response must be propor- tional; and the targeting state must consider nonlethal alternatives.
87. Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 177, citing art. 2(2) of the Euro- pean Convention on Human Rights. 88. Anne-Marie Slaughter, “Mercy Killings,” For-